Thursday, May 25, 2006

Arrant Stupidity in the House

The bribery case of Rep. William Jefferson (D-La.) simply beggars belief. Not so much that a member of Congress was found to be on the take. But rather the reactions of the House Leadership when the FBI raided the House offices of Rep. Jefferson after failing to secure his cooperation even after getting a videotape of him accepting a $100,000 bribe AND finding a great percentage of that money packed away in his freezer. Instead of taking a stand against corruption and disavowing the institution if indeed Jefferson is guilty, Speaker of the House Hastert and Minority Leader Nancy Pelosi who can't agree on the number of stars on Old Glory have banded together to declaim that:

"The Justice Department was wrong to seize records from Congressman Jefferson's office in violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years,"


This National Review editorial is right on point:

...The investigation of Jefferson has been going on for over a year. Two people (one a former Jefferson aide) have already pled guilty to bribing him. Meanwhile, one of Jefferson’s staffers told the FBI that his boss had been maintaining documentary evidence relevant to the corruption investigation in his congressional office. As the Justice department explained to the judge when requesting permission to search the office, prosecutors tried to obtain the evidence by other legal avenues—including by grand-jury subpoena—but were frustrated by Jefferson’s obstinacy.

So the choice was either to seek judicial permission to search the office, or to let Jefferson, a public servant, get away with using the public’s office space to obstruct the public’s investigation of his violation of the public’s trust. The investigators decided to seek the warrant, just as they should have. A federal district judge authorized the search, just as he should have, following well-settled law that required him to find: a) that there was probable cause of a crime, b) that there was probable cause to believe the evidence was located in the office, and c) that the warrant set forth a particularized description of what could be seized, so that the search would focus on the alleged crime and not become a fishing expedition.

In requesting the warrant, the Justice department appears to have exhibited extraordinary respect for Congress as a coequal branch of government. [emphasis added] It designed elaborate procedures to ensure a narrowly targeted search. The agents and prosecutors responsible for the investigation were not allowed to participate. The search was instead conducted by independent teams, uninvolved in the corruption investigation, who carefully reviewed all seized items to make sure that materials having nothing to do with the alleged crimes were either left alone or quickly returned to the House of Representatives.

There should have been little for leaders of Congress to do but applaud. Instead, House Speaker Dennis Hastert, Minority Leader Nancy Pelosi, and Majority Leader John Boehner led a chorus of disgruntled legislators in crying foul, closing ranks around an apparent felon, and raving incoherently about a supposed separation-of-powers violation.

This incredibly tin-eared performance was based on an extravagant construction of the Constitution’s speech-and-debate clause (Article I, Section 6). Congress evidently reads this clause as giving its office space blanket immunity from any investigation by the executive branch—even with court authorization—in connection with any crime, no matter how heinous.

But the Constitution says no such thing. While it does provide protection for legislators and the legislative process, it expressly contemplates that members of Congress may be arrested and prosecuted for felonies (as well as for treason and any “Breach of the Peace”). And though it grants Congress an important evidentiary privilege, the resulting immunity is limited: Legal proceedings against members, including criminal prosecutions, may not be premised on “any Speech or Debate in either House.” The federal courts have long interpreted this protection as transcending commentary on the floor. It covers the entire “sphere of legislative activity,” including such matters as committee reports, resolutions, the act of voting, and all things done by a member of Congress in relation to legislative business. It does not, however, cover non-legislative activities, such as taking bribes. [emphasis added]
Further, it is a protection from the use of speech-and-debate information against members; it is not immunity from being investigated in the first place. The executive branch should not intentionally set out to obtain privileged materials, which is obviously why the Justice department designed such an extensive prophylaxis for the Jefferson search. But if it does obtain them, the privilege means the materials cannot be used against a member, not that the entire investigation is tainted or that properly seized evidence of crimes must also be suppressed.
Congress had a chance to come out swinging against corruption—to demonstrate, amid a slew of tawdry scandals, its recognition that public officials are subject to the same laws as ordinary citizens. The Republican leadership in particular should have seen an opportunity to redirect attention from its caucus’s lapses to a Democrat’s crude criminality. They chose, instead, to rally around an apparent swindler. We can think of 100,000 reasons why this will be remembered as an unparalleled blunder.

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